Right to Environment

A clean and healthy environment has been formally recognised as essential to the enjoyment of human rights, such as the rights to life and an adequate standard of living, since the 1972 Stockholm Conference on the Human Environment.²³⁷ The core international human rights treaties do not however refer to environmental rights. The reason for this is that environmental awareness only gained popularity after the establishment of the human right treaties.²³⁸ Nevertheless, soft law instruments such as the 1972 Declaration of the United Nations Conference on the Human Environment and the 1992 Declaration of the United Nations Conference on Environment and Development refer to such a right.²³⁹ The international environmental law and human rights law have similar objectives, as they aim to produce better conditions of life.²⁴⁰ The right to environment according to the UN principles has a strong anthropocentric approach²⁴¹ – similarly to the UNFCCC. Therefore,

237 Declaration of the United Nations Conference on the Human Environment. Stockholm. 5-16 June 1972.

(Stockholm Declaration). Principle 1.

238 Caddick. Note 32 above. p. 118.

239 Stockholm Declaration. Note 237 above. Principle 1. Declaration of the United Nations Conference on Environment and Development. Rio de Janeiro. 12 August 1992. Principle 1.

240 Boyle. Note 161 above. p. 49.

241 Beyerlin. Note 33 above. pp. 391-392.

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environmental rights can be seen as a subclass of human rights.²⁴² Even though the international treaties do not recognise environmental right as such, strong links to environment can be found in Articles 11.1 and 12.1 of the ICESCR: ‘...the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.’, and ‘...the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’

The General Comment No. 14 of the CESCR further clarifies that the right to the highest attainable standard of health is an inclusive right, extending to the underlying determinants of health including environmental conditions.²⁴³ The UNHRC report on the relationship between climate change and human rights also recognised the link between the environment and the realisation of a range of human rights.²⁴⁴ As John Knox, the UN Special Rapporteur on human rights and the environment, notes, the UN human rights treaties require environment to have a minimum quality in order to provide conditions for healthy life.²⁴⁵ The International Bar Association Task Force makes recommendations for ‘greening’ of existing human rights obligations, that is, implementing existing human rights obligations in the context of environmental and climate change harms.²⁴⁶

Finally, there are regional human rights treaties such as the African Charter, as well as national Constitutions, that recognise the right to the environment. Of the 193 member states of the UN, 177 recognise the right to a healthy environment either in the form of a national Constitution or in another form.²⁴⁷ More than 30 African countries have adopted constitutional rights to a healthy environment.²⁴⁸ Article 24 of the African Charter recognises the right to environment and the link between the protection of the environment and socioeconomic development: ‘... all peoples shall have the right to a generally satisfactory environment favourable to their development’. Article 24 establishes a collective human right

242 Boyle. Note 161 above. p. 38.

243 CESCR. General Comment No.14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant). 11 August 2000. UN Doc E/C.12/2000/4. Art. 11.

244 UNHRC. Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights. 15 January 2009. Doc A/HRC/10/61. Para 18.

245 Carlarne C., Gray, K. and Tarasofsky, R, eds (2015). The Oxford Handbook of International Climate Change Law. Oxford. Oxford University Press. p. 2.

246 Caddick. Note 32 above. p. 119.

247 Ugochukwu, B. (2015) Climate Change and Human Right, How? Where? When? Ontario. Centre for International Governance and Innovation Papers. p. 5.

248 Knox. Note 209 above. Para. 11.

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to the environment, which is governed by the same provision as the civil and political rights and therefore requires immediate realization of these rights.²⁴⁹As Boyle notes, the interpretation of what is a generally satisfactory environment is a subjective value judgement, and the fact that the right to the environment is linked to development raises the question on the balance between economic development or environmental protection.²⁵⁰ However, Article 21 of the African Charter, which states that all people shall freely dispose their wealth and natural resources in the interest of the people, further clarifies that in the event of ‘spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation’.²⁵¹ Therefore, Article 21 offers some guidance, which can be read in the manner that if economic activities lead to a degradation of the environment, the people should be sufficiently compensated. Also in the case of climate change, economic activities may lead to increases of GHG emissions, further leading to negative climate change impacts as explained in Subsection 1.1. It is an emerging feature of environmental and human rights law that a state may be required to compensate individuals for the loss suffered as a result of the failure of a state to enforce a specific right.²⁵² African states should be prepared to compensate people whose right to generally satisfactory environment has been violated due to changing climate.

Further guidance on the interpretation of the right to environment can be sought from case law. Although the case Gbemre v Shell Petroleum Development Company Nigeria Limited and Others was brought in front of the Federal High Court of Nigeria, the Court made references to the right to environment as established in the African Charter. In this case the Federal High Court of Nigeria held that the actions of the Shell Petroleum Development Company Nigeria Ltd and the Nigerian National Petroleum Corporation in continuing to flare gas at their oil exploration and production facilities in the community of the applicant were an aggravated violation of their constitutional rights to life, human dignity, and healthy environment as guaranteed in the African Charter.²⁵³ The importance of this judgement lies in the fact that the Constitution of Nigeria does not directly provide for the right to

249 Beyerlin. Note 33 above. pp. 391-392. Boyle. Note 161 above. p. 105.

250 Ibid. pp. 50 and 106.

251 African Charter. Note 22 above. Art. 21.2.

252 Boyle. Note 161 above. p. 17.

253 Gbemre v Shell Petroleum Development Company Nigeria Limited and Others. (14 November 2005). Suit FHC/B/CS/53/05. Federal High Court of Nigeria. Art 5.6 Amechi, E. (2010). Litigating right to healthy environment in Nigeria. Law, Environment and Development Journal. (3) 6. p.324.

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environment.²⁵⁴ However, the right to a healthy environment was guaranteed through the African Charter, which has a definitive legal status in the national legal system of the state parties which have ratified the African Charter.²⁵⁵ As pointed out above, more than 30 African countries have adopted constitutional rights to a healthy environment, presumably in order to incorporate the African Charter into national legislation ²⁵⁶ As an example, Article 24 of the Constitution of the Republic of South Africa provides citizens the right to an environment ‘that is not harmful to their health or wellbeing’, and further requires the protection of environment ‘for the benefit of present and future generations’.²⁵⁷ In other words, the Constitution of the Republic of South Africa establishes a substantive right to environment that has an anthropocentric focus.

Another relevant case is the so-called Ogoni Land case, where the ACHPR found that the Federal Republic of Nigeria had violated the right to environment and the right to health.²⁵⁸ In this case, the Nigerian National Petroleum Company had degraded the land of the Ongoni people through oil spills. The ACHPR did not request the Nigerian Government to forego the oil development itself, but it made it clear that balance between economic development and rights cannot be unreasonable, or result in unjustified and expected infringements of human rights.²⁵⁹ The ACHPR requested the Government of Nigeria to ensure that appropriate environmental and social impact assessments together with effective and independent monitoring of the operations will take place.²⁶⁰ However, as a decision by the ACHPR this finding did not have a legally binding effect.²⁶¹ Nevertheless, since the establishment of the African Court on Human and Peoples’ Rights, cases are referred to the Court instead of the Commission, and the Court issues binding decisions on the member states of the African Union which have recognised its jurisdiction.²⁶²

254 Ibid. p. 324.

255 African Charter. Note 22 above. Art. 63.

256 Knox. Note 209 above. Para. 11.

257Constitution of South Africa. Note 25 above. Section 24.

258 ACHPR. Decision 155/96: Social and Economic Rights Action Centre (SERAC) and Centre for Economic and Social Rights (CESR) / Nigeria. Banjul. 13 - 27 October 2001. 15th Annual Activity Report 2001-2002.

Para 50-55 and Findings.

259 Knox Note 209 above. Para. 53.

260 ACHPR. Note 271 above. Para. 53.

261 Beyerlin. Note 33 above. p. 396.

262Organization of African Unity. Protocol on the Establishment of the AfCHPR. Note 181above. Art. 3, 28 and 34.

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In most cases the right to the environment is a substantive right to environmental quality, leading to a right to a satisfactory, healthy and clean environment, which further leads to well-being and higher standards of living. The African Charter clearly provides for such a right. However, the protection and fulfilment of such right is challenged by climate change and inadequate climate action. If this environmental quality is degraded by economic activities – as is mostly the case in terms of climate change - the people who suffer should be sufficiently compensated. The African Charter and related case law are explicit in this regard.

Therefore, African governments should take sufficient adaptive action to avoid environmental degradation due to climate change. In addition, African governments should also be prepared to compensate people when the harm cannot be avoided. It would of course be more just, if the compensation were provided from major emitting countries. However, in the absence of such an international system (see Subsection 2.4 above.), African countries still need to fulfil their human rights obligations. The right to satisfactory environment is interlinked with other rights, which are discussed below in Subsections 3.4.2 and 3.4.3